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Saturday, January 11, 2014

The Paradoxes of Human Rights

Costas Douzinas, Birkbeck Institute for the Humanities,
University of London Constellations, An International Journal of Critical
and Democratic Theory, Volume 20, Issue 1, pages 51-67, March 2013

A new ideal has triumphed on the world stage: human rights.
It unites traditional enemies, left and right, the pulpit and the state, the
minister and the rebel, the developing world and the liberals of the West. The
new world order, we are told, is genuinely liberal democratic. Ideological
controversies of the past have given way to general agreement about the
universality of western values and have placed human rights at the core of
international law. After the collapse of communism, human rights have become
the ideology after the end of ideologies, at the end of history, the morality
of international relations, a way of conducting politics according to ethical
norms.

And yet many doubts persist. The record of human rights
violations since their ringing declarations at the end of the eighteenth
century, after WWII and again since 1989 is quite appalling. If the twentieth
century is the epoch of human rights, their triumph is, to say the least,
something of a paradox. Our era has witnessed more violations of their
principles than any previous, less “enlightened” one. Ours is the epoch of
massacre, genocide, and ethnic cleansing. At no point in human history has
there been a greater gap between the north and the south, between the poor and
the rich in the developed world, or between the seduced and the excluded
globally. Life expectancy at birth is around 45 years in sub-Saharan Africa but
over 80 years in Northern Europe. No belief of progress allows us to ignore
that never before in ‘peacetime’ and in absolute figures, have so many men,
women, and children been subjugated, starved, or exterminated.

There is a second paradox: if the world has accepted a
common humanitarian vision, have conflicts of ideology, religion, and ethnicity
ceased? Obviously not. This means that human rights have no common meaning or
that the term describes radically different phenomena. There is something more:
human rights are perhaps the most important liberal legal institution. Liberal
jurisprudence and political philosophy, however, have failed rather badly in
their understanding of rights. Two hundred years of social theory and the three
major ‘continents’ of thought, according to Louis Althusser, do not enter the
annals of jurisprudence: Hegel, Marx, the post-Marxists, and the dialectic of
struggle; Nietzsche, Foucault, and the analytics of power; Freud, the
post-Freudians, psychoanalysis and subjectivity. As a result, jurisprudence and
political philosophy return to the 18th century and update the social contract
with ‘original positions’ and ‘veils of ignorance,’ the categorical imperative
with ‘ideal speech’ situations and fundamental discourse principles all
referring to individuals fully in control of themselves.

The mainstreaming of human rights and the rise of
cosmopolitanism coincided with the emergence of what sociologists have called
“globalization,” economists “neo-liberalism,” and political philosophers
“post-democratic governance.” Is there a link between recent moralistic
ideology, greedy capitalism and bio-political governmentality? My answer is a
clear yes. Nationally, the bio-political form of power has increased the
surveillance, disciplining, and control of life. Morality (and rights as
morality's main building block in late capitalism) was always part of the
dominant order, in close contact with each epoch's forms of power. Recently,
however, rights have mutated from a relative defense against power to a
modality of its operations. If rights express, promote and legalize individual
desire, they have been contaminated by desire's nihilism. Internationally, the
modernist edifice is undermined at the point when the completion of the
decolonization process and the relative rise of the developing world create the
prospect of a successful defense of its interests. The imposition of
‘cosmopolitan’ economic, cultural, legal, and military policies is an attempt
to reassert western hegemony.

The wars of the new world order as well as the 2008 economic
crisis and its political culmination in 2011 give us a unique opportunity to
examine the post-1989 settlement. The best time to demystify ideology is when
it enters into crisis. At this point, the taken for granted, “natural”,
invisible premises of ideology come to the surface, become objectified, and can
be understood for the first time as constructs. The ‘humanitarian’
interpretation of the Iraq and Afghanistan wars highlighted the absurdity of
killing humans to ‘save’ humanity. The absence of human rights demands in
Madrid, Athens, or Occupy Wall Street indicated their limited relevance for the
most important movement of our times. In the wake of this world wave of
protest, several major themes of political philosophy need to be re-visited.

This essay briefly presents an alternative approach to human
rights built over a long period of campaigning and scholarship in a trilogy of
books.1 It follows the insight that the term human rights, with its immense
symbolic capital, has been co-opted to a large number of relatively independent
discourses, practices, institutions and campaigns. As a result no global
‘theory’ of rights exists or can be created. Different theoretical perspectives
and disciplinary approaches are therefore necessary. This article starts a
short history of the idea of humanity and moves to the political, legal,
philosophical, and psychological aspects of rights. To indicate this
multi-layered approach, it puts forward an axiom and seven theses that re-write
the standard liberal approach to rights.

The Human Rights Axiom

The end of human rights is to resist public and private
domination and oppression. They lose that end when they become the political
ideology or idolatry of neo-liberal capitalism or the contemporary version of
the civilizing mission.

Thesis 1

The idea of ‘humanity’ has no fixed meaning and cannot act
as the source of moral or legal rules. Historically, the idea has been used to
classify people into the fully human, the lesser human, and the inhuman.

If ‘humanity’ is the normative source of moral and legal
rules, do we know what ‘humanity’ is? Important philosophical and ontological
questions are involved here. Let me have a brief look at its history.

Pre-modern societies did not develop a comprehensive idea of
the human species. Free men were Athenians or Spartans, Romans or Carthaginians,
but not members of humanity; they were Greeks or barbarians, but not humans.
According to classical philosophy, a teleologically determined human nature
distributes people across social hierarchies and roles and endows them with
differentiated characteristics. The word humanitas appeared for the first time
in the Roman Republic as a translation of the Greek word paideia. It was
defined as eruditio et institutio in bonas artes (the closest modern equivalent
is the German Bildung). The Romans inherited the concept from Stoicism and used
it to distinguish between the homo humanus, the educated Roman who was
conversant with Greek culture and philosophy and was subjected to the jus
civile, and the homines barbari, who included the majority of the uneducated
non-Roman inhabitants of the Empire. Humanity enters the western lexicon as an
attribute and predicate of homo, as a term of separation and distinction. For
Cicero as well as the younger Scipio, humanitas implies generosity, politeness,
civilization, and culture and is opposed to barbarism and animality.2 “Only
those who conform to certain standards are really men in the full sense, and
fully merit the adjective ‘human’ or the attribute ‘humanity.’”3 Hannah Arendt
puts it sarcastically: ‘a human being or homo in the original meaning of the
word indicates someone outside the range of law and the body politic of the
citizens, as for instance a slave – but certainly a politically irrelevant
being.’4

If we now turn to the political and legal uses of humanitas,
a similar history emerges. The concept ‘humanity’ has been consistently used to
separate, distribute, and classify people into rulers, ruled, and excluded.
‘Humanity’ acts as a normative source for politics and law against a background
of variable inhumanity. This strategy of political separation curiously entered
the historical stage at the precise point when the first proper universalist
conception of humanitas emerged in Christian theology, captured in the St
Paul's statement, that there is no Greek or Jew, man or woman, free man or
slave (Epistle to the Galatians 3:28). All people are equally part of humanity
because they can be saved in God's plan of salvation and, secondly, because
they share the attributes of humanity now sharply differentiated from a
transcended divinity and a subhuman animality. For classical humanism, reason
determines the human: man is a zoon logon echon or animale rationale. For
Christian metaphysics, on the other hand, the immortal soul, both carried and
imprisoned by the body, is the mark of humanity. The new idea of universal
equality, unknown to the Greeks, entered the western world as a combination of
classical and Christian metaphysics.

The divisive action of ‘humanity’ survived the invention of
its spiritual equality. Pope, Emperor, Prince, and King, these representatives
and disciples of God on earth were absolute rulers. Their subjects, the
sub-jecti or sub-diti, take the law and their commands from their political
superiors. More importantly, people will be saved in Christ only if they accept
the faith, since non-Christians have no place in the providential plan. This
radical divide and exclusion founded the ecumenical mission and proselytizing
drive of Church and Empire. Christ's spiritual law of love turned into a battle
cry: let us bring the pagans to the grace of God, let us make the singular
event of Christ universal, let us impose the message of truth and love upon the
whole world. The classical separation between Greek (or human) and barbarian
was based on clearly demarcated territorial and linguistic frontiers. In the
Christian empire, the frontier was internalized and split the known globe
diagonally between the faithful and the heathen. The barbarians were no longer
beyond the city as the city expanded to include the known world. They became
‘enemies within’ to be appropriately corrected or eliminated if they stubbornly
refused spiritual or secular salvation.

The meaning of humanity after the conquest of the ‘New
World’ was vigorously contested in one of the most important public debates in
history. In April 1550, Charles V of Spain called a council of state in
Valladolid to discuss the Spanish attitude towards the vanquished Indians of
Mexico. The philosopher Ginés de Sepulveda and the Bishop Bartholomé de las
Casas, two major figures of the Spanish Enlightenment, debated on opposite
sides. Sepulveda, who had just translated Aristotle's Politics into Spanish, argued
that “the Spaniards rule with perfect right over the barbarians who, in
prudence, talent, virtue, humanity are as inferior to the Spaniards as children
to adults, women to men, the savage and cruel to the mild and gentle, I might
say as monkey to men.”5 The Spanish crown should feel no qualms in dealing with
Indian evil. The Indians could be enslaved and treated as barbarian and savage
slaves in order to be civilized and proselytized.

Las Casas disagreed. The Indians have well-established
customs and settled ways of life, he argued, they value prudence and have the
ability to govern and organize families and cities. They have the Christian
virtues of gentleness, peacefulness, simplicity, humility, generosity, and
patience, and are waiting to be converted. They look like our father Adam
before the Fall, wrote las Casas in his Apologia, they are ‘unwitting’
Christians. In an early definition of humanism, las Casas argued that “all the
people of the world are humans under the only one definition of all humans and
of each one, that is that they are rational…Thus all races of humankind are
one.”6 His arguments combined Christian theology and political utility.
Respecting local customs is good morality but also good politics: the Indians
would convert to Christianity (las Casas’ main concern) but also accept the
authority of the Crown and replenish its coffers, if they were made to feel
that their traditions, laws, and cultures are respected. But las Casas’
Christian universalism was, like all universalisms, exclusive. He repeatedly
condemned “Turks and Moors, the veritable barbarian outcasts of the nations”
since they cannot be seen as “unwitting” Christians. An “empirical”
universalism of superiority and hierarchy (Sepulveda) and a normative one of
truth and love (las Casas) end up being not very different. As Tzvetan Todorov
pithily remarks, there is “violence in the conviction that one possesses the
truth oneself, whereas this is not the case for others, and that one must
furthermore impose that truth on those others.”7

The conflicting interpretations of humanity by Sepulveda and
las Casas capture the dominant ideologies of Western empires, imperialisms, and
colonialisms. At one end, the (racial) other is inhuman or subhuman. This
justifies enslavement, atrocities, and even annihilation as strategies of the
civilizing mission. At the other end, conquest, occupation, and forceful
conversion are strategies of spiritual or material development, of progress and
integration of the innocent, naïve, undeveloped others into the main body of
humanity.

These two definitions and strategies towards otherness act
as supports of western subjectivity. The helplessness, passivity, and
inferiority of the “undeveloped” others turns them into our narcissistic
mirror-image and potential double. These unfortunates are the infants of
humanity. They are victimized and sacrificed by their own radical evildoers;
they are rescued by the West who helps them grow, develop and become our
likeness. Because the victim is our mirror image, we know what his interest is
and impose it “for his own good.” At the other end, the irrational, cruel,
victimizing others are projections of the Other of our unconscious. As Slavoj
Žižek puts it, “there is a kind of passive exposure to an overwhelming Otherness,
which is the very basis of being human…[the inhuman] is marked by a terrifying
excess which, although it negates what we understand as ‘humanity’ is inherent
to being human.”8 We have called this abysmal other lurking in the psyche and
unsettling the ego various names: God or Satan, barbarian or foreigner, in
psychoanalysis the death drive or the Real. Today they have become the “axis of
evil,” the “rogue state,” the “bogus refugee,” or the “illegal” migrant. They
are contemporary heirs to Sepulveda's “monkeys,” epochal representatives of
inhumanity.

A comparison of the cognitive strategies associated with the
Latinate humanitas and the Greek anthropos is instructive. The humanity of
humanism (and of the academic Humanities9) unites knowing subject and known
object following the protocols of self-reflection. The anthropos of physical
and social anthropology, on the other hand, is the object only of cognition.
Physical anthropology examines bodies, senses, and emotions, the material
supports of life. Social anthropology studies diverse non-western peoples,
societies, and cultures, but not the human species in its essence or totality.
These peoples emerged out of and became the object of observation and study
through discovery, conquest, and colonization in the new world, Africa, Asia,
or in the peripheries of Europe. As Nishitani Osamu puts it, humanity and
anthropos signify two asymmetrical regimes of knowledge.10 Humanity is
civilization, anthropos is outside or before civilization. In our globalized world,
the minor literatures of anthropos are examined by comparative literature,
which compares “civilization” with lesser cultures.

The gradual decline of Western dominance is changing these
hierarchies. Similarly, the disquiet with a normative universalism, based on a
false conception of humanity, indicates the rise of local, concrete, and
context-bound normativities.

In conclusion, because ‘humanity’ has no fixed meaning, it
cannot act as a source of norms. Its meaning and scope keeps changing according
to political and ideological priorities. The continuously changing conceptions
of humanity are the best manifestations of the metaphysics of an age. Perhaps
the time has come for anthropos to replace the human. Perhaps the rights to
come will be anthropic (to coin a term) rather than human, expressing and
promoting singularities and differences instead of the sameness and
equivalences of hitherto dominant identities.

Thesis 2

Power and morality, empire and cosmopolitanism, sovereignty
and rights, law and desire are not fatal enemies. Instead, a historically
specific amalgam of power and morality forms the structuring order of each
epoch and society.

We will explore the strong internal connection between these
superficially antagonistic principles, at the point of their emergence in the
late 18th century here and in the post-1989 order in the next part.

The religious grounding of humanity was undermined by the
liberal political philosophies of early modernity. The foundation of humanity
was transferred from God to (human) nature. Human nature has been interpreted
as an empirical fact, a normative value, or both. Science has driven the first
approach. The mark of humanity has been variously sought in language, reason or
evolution. Man as species existence emerged as a result of legal and political
innovations. The idea of humanity is the creation of humanism, with legal
humanism at the forefront. Indeed the great 18th century revolutions and
declarations paradigmatically manifest and helped construct modern universalism.
And yet, at the heart of humanism, humanity remained a strategy of division and
classification.

We can follow briefly this contradictory process, which both
proclaims the universal and excludes the local in the text of the French
Declaration of the Rights of Man and Citizen, the manifesto of modernity.
Article 1, the progenitor of normative universalism, states that ‘men are born
and remain free and equal of right’ a claim repeated in the inaugural article
of the 1948 Universal Declaration of Human Rights. Equality and liberty are
declared natural entitlements and independent of governments, epochal, and
local factors. And yet the Declaration is categorically clear about the real
source of universal rights. Article 2 states that ‘the aim of any political
association is to preserve the natural and inalienable rights of man’ and
Article 3 proceeds to define this association: ‘The principle of all
Sovereignty lies essentially with the nation.’

‘Natural’ and eternal rights are declared on behalf of the
universal “man.” However these rights do not pre-exist but were created by the
Declaration. A new type of political association, the sovereign nation and its
state and a new type of ‘man’, the national citizen, came into existence and
became the beneficiary of rights. In a paradoxical fashion, the declaration of
universal principle established local sovereignty. From that point, statehood
and territory follow a national principle and belong to a dual time. If the
declaration inaugurated modernity, it also started nationalism and its
consequences: genocide, ethnic and civil war, ethnic cleansing, minorities,
refugees, the stateless. The spatial principle is clear: every state and
territory should have its unique dominant nation and every nation should have
its own state – a catastrophic development for peace as its extreme application
since 1989 has shown.

The new temporal principle replaced religious eschatology
with a historical teleology, which promised the future suturing of humanity and
nation. This teleology has two possible variants: either the nation imposes its
rule on humanity or universalism undermines parochial divides and identities.
Both variants became apparent when the Romans turned Stoic cosmopolitanism into
the imperial legal regulation of jus gentium. In France, the first alternative
appeared in the Napoleonic war, which allegedly spread the civilizing influence
through conquest and occupation (according to Hegel, Napoleon was the world
spirit on horseback); while the second was the beginning of a modern
cosmopolitanism, in which slavery was abolished and colonial people were given
political rights for a limited time after the Revolution. From the imperial
deformation of Stoic cosmopolitanism to the current use of human rights to
legitimize Western global hegemony, every normative universalism has decayed
into imperial globalism. The split between normative and empirical humanity
resists its healing, precisely because universal normativity has been
invariably defined by a part of humanity.

The universal humanity of liberal constitutions was the
normative ground of division and exclusion. A gap was opened between universal
“man,” the ontological principle of modernity, and national citizen, its
political instantiation and the real beneficiary of rights. The nation-state
came into existence through the exclusion of other people and nations. The
modern subject reaches her humanity by acquiring political rights of
citizenship, which guarantee her admission to the universal human nature by excluding
from that status others. The alien as a non-citizen is the modern barbarian. He
does not have rights because he is not part of the state and he is a lesser
human being because he is not a citizen. One is a man to greater or lesser
degree because one is a citizen to a greater or lesser degree. The alien is the
gap between man and citizen.

In our globalised world, not to have citizenship, to be
stateless or a refugee, is the worst fate. Strictly speaking, human rights do
not exist: if they are given to people on account of their humanity and not of
some lower level group membership, then refugees, the sans papiers migrants and
prisoners in Guatanamo Bay and similar detention centers, who have little if
any legal protection, should be their main beneficiaries. They have few, if
any, rights. They are legally abandoned, bare life, the homines sacri of the
new world order.

The epochal move to the subject is driven and exemplified by
legal personality. As species existence, the “man” of the rights of man appears
without gender, color, history, or tradition. He has no needs or desires, he is
an empty vessel united with all others through three abstract traits: free
will, reason, and the soul (now the mind) — the universal elements of human
essence. This minimum of humanity allows “man” to claim autonomy, moral
responsibility, and legal subjectivity. At the same time, the empirical man who
actually enjoys the ‘rights of man’ is a man all too man: a well-off,
heterosexual, white, urban male who condenses in his person the abstract
dignity of humanity and the real prerogatives of belonging to the community of
the powerful. A second exclusion therefore conditions humanism, humanity and
its rights. Mankind excludes improper men, that is, men of no property or
propriety, humans without rhyme and reason, women, racial, and ethnic sexual
minorities. Rights construct humans against a variable inhumanity or
anthropology. Indeed these “inhuman conditions of humanity,” as Pheng Cheah has
called them, act as quasi-transcendental preconditions of modern life.11

The contemporary history of human rights can be seen as the
ongoing and always failing struggle to close the gap between the abstract man
and the concrete citizen; to add flesh, blood and sex to the pale outline of
the ‘human’ and extend the dignities and privileges of the powerful (the
characteristics of normative humanity) to empirical humanity. This has not
happened however and is unlikely to be achieved through the action of rights.

Thesis 3

The post-1989 order combines an economic system that
generates huge structural inequalities and oppression with a juridico-political
ideology promising dignity and equality. This major instability is contributing
to its demise.

Why and how did this combination of neo-liberal capitalism
and humanitarianism emerge? Capitalism has always moralized the economy and
applied a gloss of righteousness to profit-making and unregulated competition
precisely because it is so hard to believe. From Adam Smith's ‘hidden hand’ to
the assertion that unrestrained egotism promotes the common good or that
beneficial effects ‘trickle down’ if the rich get even bigger tax breaks,
capitalism has consistently tried to claim the moral high ground.12

Similarly, human rights and their dissemination are not
simply the result of the liberal or charitable disposition of the West. The
predominantly negative meaning of freedom as the absence of external
constraints – a euphemism for keeping state regulation of the economy at a
minimum – has dominated the Western conception of human rights and turned them
into the perfect companion of neo-liberalism. Global moral and civic rules are
the necessary companion of the globalization of economic production and
consumption, of the completion of world capitalism that follows neo-liberal
dogmas. Over the last 30 years, we have witnessed, without much comment, the
creation of global legal rules regulating the world capitalist economy, including
rules on investment, trade, aid, and intellectual property. Robert Cooper has
called it the voluntary imperialism of the global economy. “It is operated by
an international consortium of financial Institutions such as the IMF and the
World Bank…These institutions…make demands, which increasingly emphasise good
governance. If states wish to benefit, they must open themselves up to the
interference of international organisations and foreign states.” Cooper
concludes that “what is needed then is a new kind of imperialism, one
acceptable to a world of human rights and cosmopolitan values.”13

The (implicit) promise to the developing world is that the
violent or voluntary adoption of the market-led, neo-liberal model of good
governance and limited rights will inexorably lead to Western economic
standards. This is fraudulent. Historically, the Western ability to turn the
protection of formal rights into a limited guarantee of material, economic, and
social rights was partly based on huge transfers from the colonies to the
metropolis. While universal morality militates in favor of reverse flows,
Western policies on development aid and Third World debt indicate that this is
not politically feasible. Indeed, the successive crises and re-arrangements of
neoliberal capitalism lead to dispossession and displacement of family farming
by agribusiness, to forced migration and urbanization. These processes expand
the number of people without skills, status, or the basics for existence. They
become human debris, the waste-life, the bottom billions. This neo-colonial
attitude has now been extended from the periphery to the European core. Greece,
Portugal, Ireland, and Spain have been subjected to the rigors of the
neoliberal “Washington Consensus” of austerity and destruction of the welfare
state, despite its failure in the developing world. More than half the young
people of Spain and Greece are permanently unemployed and a whole generation is
being destroyed. But this gene-cide, to coin a term, has not generated a human
rights campaign.

As Immanuel Wallerstein put it, “if all humans have equal
rights, and all the peoples have equal rights, then we cannot maintain the kind
of inegalitarian system that the capitalist world economy has always been and
always will be.”14 When the unbridgeability of the gap between the missionary
statements on equality and dignity and the bleak reality of obscene inequality
becomes apparent, human rights will lead to new and uncontrollable types of
tension and conflict. Spanish soldiers met the advancing Napoleonic armies
shouting “Down with freedom!” Today people meet the ‘peacekeepers’ of the new
world order with cries of “Down with human rights!”

Social and political systems become hegemonic by turning
their ideological priorities into universal principles and values. In the new
world order, human rights are the perfect candidate for this role. Their core
principles, interpreted negatively and economically, promote neo-liberal
capitalist penetration. Under a different construction, their abstract
provisions could subject the inequalities and indignities of late capitalism to
withering attack. But this cannot happen as long as they are used by the
dominant powers to spread the ‘values’ of an ideology based on the nihilism and
insatiability of desire.

Despite differences in content, colonialism and the human
rights movement form a continuum, episodes in the same drama, which started
with the great discoveries of the new world and is now carried out in the
streets of Iraq and Afghanistan: bringing civilization to the barbarians. The
claim to spread Reason and Christianity gave western empires their sense of
superiority and their universalizing impetus. The urge is still there; the
ideas have been redefined but the belief in the universality of our world-view
remains as strong as that of the colonialists. There is little difference
between imposing reason and good governance and proselytizing for Christianity
and human rights. They are both part of the cultural package of the West,
aggressive and redemptive at the same time.

Thesis 4

Universalism and communitarianism rather than being
opponents are two types of humanism dependent on each other. They are
confronted by the ontology of singular equality

The debate about the meaning of humanity as the ground
normative source is conducted between universalists and communitarians. The
universalist claims that cultural values and moral norms should pass a test of
universal applicability and logical consistency and often concludes that, if
there is one moral truth but many errors, it is incumbent upon its agents to
impose it on others.

Communitarians start from the obvious observation that
values are context-bound and try to impose them on those who disagree with the
oppressiveness of tradition. Both principles, when they become absolute
essences and define the meaning and value of humanity without remainder, can
find everything that resists them expendable.

Kosovo is a good example. The proud Serbians killed and
‘cleansed’ ethnic Albanians in order to protect the integrity of the ‘cradle’
of their nation (interestingly, like most wild nationalisms, celebrating a
historic defeat). NATO bombers killed people in Belgrade and Kosovo from 35,000
feet in order to defend the rights of humanity. Both positions exemplify,
perhaps in different ways, the contemporary metaphysical urge: they have made
an axiomatic decision as to what constitutes the essence of humanity and follow
it with a stubborn disregard for alternatives. They are the contemporary
expressions of a humanism that defines the ‘essence’ of humanity all the way to
its end, as telos and finish. To paraphrase Emanuel Levinas, to save the human
we must defeat this type of humanism.

The individualism of universal principles forgets that every
person is a world and comes into existence in common with others, that we are
all in community. Every human is a singular being, unique in her existence as
an unrepeatable concatenation of past encounters, desires, and dreams with
future projections, expectations, and plans. Every single person forms a
phenomenological cosmos of meaning and intentionality, in relations of desire
conversation and recognition with others. Being in common is an integral part
of being self: self is exposed to the other, it is posed in exteriority, the
other is part of the intimacy of self. My face is “always exposed to others,
always turned toward an other and faced by him or her never facing myself.”15

Indeed being in community with others is the opposite of
common being or of belonging to an essential community. Communitarians, on the
other hand, define community through the commonality of tradition, history, and
culture, the various past crystallizations whose inescapable weight determines
present possibilities. The essence of the communitarian community is often to
compel or ‘allow’ people to find their ‘essence,’ common ‘humanity’ now defined
as the spirit of the nation or of the people or the leader. We have to follow
traditional values and exclude what is alien and other. Community as communion
accepts human rights only to the extent that they help submerge the I into the
We, all the way till death, the point of ‘absolute communion’ with dead tradition.16

Both universal morality and cultural identity express
different aspects of human experience. Their comparison in the abstract is
futile and their differences are not pronounced. When a state adopts
‘universal’ human rights, it will interpret and apply them, if at all,
according to local legal procedures and moral principles, making the universal
the handmaiden of the particular. The reverse is also true: even those legal
systems that jealously guard traditional rights and cultural practices against
the encroachment of the universal are already contaminated by it. All rights
and principles, even if parochial in their content, share the universalizing
impetus of their form. In this sense, rights carry the seed of the dissolution
of community and the only defense is to resist the idea of rights altogether,
something impossible in global neo-liberalism. The claims of universality and
tradition, rather than standing opposed in mortal combat, have become uneasy
allies, whose fragile liaison has been sanctioned by the World Bank.

From our perspective, humanity cannot act as a normative
principle.. Humanity is not a property shared. It is discernible in the
incessant surprising of the human condition and its exposure to an undecided
open future. Its function lies not in a philosophical essence but in its
non-essence, in the endless process of re-definition and the necessary but
impossible attempt to escape external determination. Humanity has no foundation
and no end; it is the definition of groundlessness.

Rights form the terrain on which people are distributed into
rulers, ruled, and excluded. Power's mode of operation is revealed, if we
observe which people are given or deprived of which rights at which particular
place or point in time. In this sense, human rights both conceal and affirm the
dominant structure of a period and help combat it. Marx was the first to
realize the paradoxical nature of rights. Natural rights emerged as a symbol of
universal emancipation, but they were at the same time a powerful weapon in the
hands of the rising capitalist class, securing and naturalizing emerging
dominant economic and social relations. They were used to take out of political
challenge the central institutions of capitalism such as religion, property,
contractual relations and the family, thus providing the best protection
possible. Ideologies, private interests, and egotistical concerns appear
natural, normal, and for the public good when they are glossed over by rights
vocabulary. As Marx inimitably put it, “freedom, equality, property and
Bentham.”17

Early human rights were historical victories of groups and
individuals against state power while at the same time promoting a new type of
domination. As Giorgio Agamben argues, they “simultaneously prepared a tacit
but increasing inscription of individuals’ lives within the state order, thus
offering a new and more dreadful foundation for the very sovereign power from
which they wanted to liberate themselves.”18 In late capitalism, with its
proliferating bio-political regulation, the endlessly multiplying rights
paradoxically increase power's investment on bodies.

If classical natural rights protected property and religion
by making them ‘apolitical’, the main effect of rights today is to depoliticize
politics itself. Let us introduce a key distinction in recent political
philosophy between politics (la politique) and the political (le politique).
According to Chantal Mouffe, politics is the terrain of routine political life,
the activity of debating, lobbying, and horse-trading that takes places around
Westminster and Capitol Hill.19 The ‘political,’ on the other hand, refers to
the way in which the social bond is instituted and concerns deep rifts in
society. The political is the expression and articulation of the irreducibility
of social conflict. Politics organizes the practices and institutions through
which order is created, normalizing social co-existence in the context of
conflict provided by the political.

This deep antagonism is the result of the tension between
the structured social body, where every group has its role, function, and
place, and what Jacques Rancière calls “the part of no part.” Groups that have
been radically excluded from the social order; they are invisible, outside the
established sense of what exists and is acceptable. Politics proper erupts only
when an excluded part demands to be included and must change the rules of
inclusion to achieve that. When they succeed, a new political subject is
constituted, in excess to the hierarchized and visible group of groups and a
division is put in the pre-existing common sense.20

What is the role of human rights in this division between
politics and the political? Right claims reinforce rather than challenge
established arrangements. The claimant accepts the established power and
distribution orders and transforms the political claim into a demand for
admission to the law. The role of law is to transform social and political tensions
into a set of solvable problems regulated by rules and hand them over to rule
experts. The rights claimant is the opposite of the revolutionaries of the
early declarations, whose task was to change the overall design of the law. To
this extent, his actions abandon the original commitment of rights to resist
and oppose oppression and domination. The ‘excessive’ subjects, who stand for
the universal from a position of exclusion, have been replaced by social and
identity groups seeking recognition and limited re-distribution.

In the new world order the right-claims of the excluded are
foreclosed by political, legal, and military means. Economic migrants,
refugees, prisoners of the war on terror, the sans papiers, inhabitants of
African camps, these ‘one use humans’ are the indispensable precondition of
human rights but, at the same time, they are the living, or rather dying, proof
of their impossibility. Successful human rights struggles have undoubtedly
improved the lives of people by marginal re-arrangements of social hierarchies
and non-threatening re-distributions of the social product. But their effect is
to de-politicize conflict and remove the possibility of radical change.

We can conclude that human rights claims and struggles bring
to the surface the exclusion, domination and exploitation, and inescapable
strife that permeates social and political life. But, at the same time, they
conceal the deep roots of strife and domination by framing struggle and
resistance in the terms of legal and individual remedies which, if successful,
lead to small individual improvements and a marginal re-arrangement of the
social edifice. Can human rights re-activate a politics of resistance? The
intrinsic link between early natural rights, (religious) transcendence, and
political radicalism opened the possibility. It is still active in parts of the
world not fully incorporated in the biopolitical operations of power. But only
just. The metaphysics of the age is that of the deconstruction of essence and
meaning, the closing of the divide between ideal and real, the subjection of
the universal to the dominant particular. Economic globalization and semiotic
monolingualism are carrying this task out in practice; its intellectual
apologists do it in theory. The political and moral duty of the critic is to
keep the rift open and to discover and fight for transcendence in immanence.

Thesis 6

In advanced capitalist societies, human rights become
strategies for the publicization and legalization of (insatiable) individual
desire.

Liberal theories from Immanuel Kant to John Rawls present
the self as a solitary and rational entity endowed with natural characteristics
and rights and in full control of himself. Rights to life, liberty, and
property are presented as integral to humanity's well-being. The social
contract (or its heuristic restatement through the “original position”) creates
society and government but preserves these rights and makes them binding on
government. Rights and today human rights are pre-social, they belong to humans
precisely because they are humans. We use this natural patrimony as tools or
instruments to confront the outside world, to defend our interests, and to
pursue our life plans

This position is sharply contrasted by Hegelian and Marxist
dialectics, hermeneutics and psychoanalysis. The human self is not a stable and
isolated entity that, once formed, goes into the world and acts according to
pre-arranged motives and intentions. Self is created through constant
interactions with others, the subject is always inter-subjective. My identity
is constructed in an ongoing dialogue and struggle for recognition, in which
others (both people and institutions) acknowledge certain characteristics,
attributes, and traits as mine, helping create my own sense of self. Identity
emerges out of this conversation and struggle with others which follows the
dialectic of desire. Law is a tool and effect of this dialectic; human rights
acknowledge the constitutive role of desire.

Hegel's basic idea can be put simply. The self is both
separate from and dependent upon the external world. Dependence on the not-I,
both the object and the other person, makes the self realize that he is not
complete but lacking and that he is constantly driven by desire. Life is a
continuous struggle to overcome the foreignness of the other person or object.
Survival depends on overcoming this radical split from the not-I, while
maintaining the sense of uniqueness of self.21

Identity is therefore dynamic always on the move. I am in
ongoing dialogue with others, a conversation that keeps changing others and
re-drawing my own self-image. Human rights do not belong to humans and do not
follow the dictates of humanity; they construct humans. A human being is someone
who can successfully claim human rights and the group of rights we have
determines how “human” we are; our identity depends on the bunch of rights we
can successfully mobilize in relations with others. If this is the case, rights
must be linked with deep-seated psychological functions and needs. From the
heights of Hegelian dialectics, we now move to the much darker territory of
Freudian psychoanalysis.

Jus vitam institutare, the law constitutes life, states a
Roman maxim. For psychoanalysis it remains true. We become independent,
speaking subjects by entering the symbolic order of language and law. But this
first ‘symbolic castration’ must be supplemented by a second that makes us
legal subjects. It introduces us into the social contract leaving behind the
family life of protection, love, and care. The symbolic order imposes upon us
the demands of social life. God, King, or the Sovereign act as universal
fathers, representing an omnipotent and unitary social power, which places us
in the social division of labor. If, according to Jacques Lacan, the name of
the father makes us speaking subjects, the name of the Sovereign turns us into
legal subjects and citizens.

This second entry into the law denies, like symbolic
castration, the perceived wholeness of family intimacy and replaces it with
partial recognitions and incomplete entitlements. Rights by their nature cannot
treat the whole person. In law, a person is never a complete being but a
persona, ritual or theatrical mask, that hides his or her face under a
combination of partial rights. The legal subject is a combination of
overlapping and conflicting rights and duties; they are law's blessing and
curse. Rights are manifestations of individual desire as well as tools of
societal bonding. Following the standard Lacanian division, rights have
symbolic, imaginary, and real aspects. Their symbolic function places us in the
social division of labor, hierarchy, and exclusion, the imaginary gives us a
(false) sense of wholeness while the real disrupts the pleasures of the
symbolic and the falsifications of the imaginary. Psychoanalysis offers the
most advanced explanation of the constitutive and contradictory work of rights.

The symbolic function of rights bestows legal personality
and introduces people to independence away from the intimacy of family. Law and
rights construct a formal structure, which allocates us to a place in a matrix
of relations strictly indifferent to the needs or desires of flesh and blood
people. Legal rights offer the minimum recognition of abstract humanity, formal
equivalence and moral responsibility, irrespective of individual
characteristics. At the same time, they place people on a grid of distinct and
hierarchical roles and functions, of prohibitions, entitlements and exclusions.
Social and economic rights add a layer of difference to abstract similarity;
they recognize gender, race, religion, and sexuality, in part moving
recognition from the abstract equality of humanity to differentiated qualities,
characteristics, and predications. Human rights may promise universal happiness
but their empirical existence and enforcement depends on genealogies,
hierarchies of power and contingencies that allocate the necessary resources
ignoring and dismissing expectations or needs. The legal person that rights and
duties construct resembles a caricature of the actual human self. The face has
been replaced by an image in the cubist style; the nose comes out of the mouth,
eyes protrude on the sides, forehead and chin are reversed. It projects a
three-dimensional object onto a flat canvas.

The integrity of self denied by the symbolic order of rights
returns in the imaginary. Human rights promise an end to conflict, social peace
and well-being (the pursuit of happiness was an early promise in the American
Declaration of Independence). A society of rights offers an ideal place, a
stage and supplement for the ideal ego. As a man of rights, I see myself as
someone with dignity, respect, and self-respect, at peace with the world. A
society that guarantees rights is a good place, peaceful and affluent, a social
order made for and fitting the individual who stands at its center. A legal
system that protects rights is rationally coherent and closed (Ronald Dworkin
calls it a “seamless web”), morally good (it has principles and the consequent
“right” answers to all “hard” problems), pragmatically efficient.

The imaginary domain of rights creates an immediate, imaged
and imagined bond, between the subject, her ideal ego, and the world. Human
rights project a fantasy of wholeness, which unites body and soul into an
integrated self. It is a beautiful self that fits in a good world, a society
made for the subject. The anticipated completeness, the projected future
integrity that underpins present identity is non-existent and impossible
however and, moreover, differs from person to person and from community to
community. Our imaginary identification with a good society accepts too easily
that the language, signs and images of human rights are (or can become) our reality.
The right to work, people assert, exists since it is written in the Universal
Declaration, the international Covenants, the Constitution, the law, the
statements of politicians. Billions of people have no food, no employment, no
education, or health care – but this brutal fact does not weaken the assertion
of the ideal. The necessary replacement of materiality by signs, of needs and
desires by words and images makes people believe that the mere existence of
legal texts and institutions, with little performance or action, affects and
completes bodies.

The imaginary promoted by human rights enthusiasts presents
a world made for my sake, in which the law meets (or ought to and will meet) my
desires. This happy identification with the social and legal system is based on
misrecognition. The world is indifferent to my being, happiness or travails.
The law is not coherent or just. Morality is not law's business and peace is
always temporary and precarious, never perpetual. The state of eu zein or
well-being, the terminal point of human rights, is always deferred, its promise
postponed its performance impossible. For the middle classes, to be sure, human
rights are birth-right and patrimony. For the unfortunates of the world, on the
other hand, they are only vague promises, fake supports for offering obedience,
with their delivery permanently frustrated. Like the heaven of Christianity,
human rights form a receding horizon that allows people to endure daily
humiliations and subjugations.

The imaginary of rights is gradually replacing social
justice. The decolonization struggles, the civil rights and counter-cultural
movements fought for an ideal society based on justice and equality. In the
human rights age, the pursuit of collective material welfare has given way to
individual gratification and the avoidance of evil. The rights imaginary goes
into overdrive when it turns images into “reality,” when legal clauses and
terms replace food and shelter, when weasel words become the garb and grab of
power. Rights emphasize the individual, his autonomy, and his place in the
world. Like all imaginary identifications, they repress the recognition that
the subject is inter-subjective and that the economic and social order is
strictly indifferent to the fate of any particular individual. According to
Louis Althusser, ideology is not “false consciousness” but is made up of ways
of living, practices, and experiences that misrecognize our place in the world.
It is “the imaginary relationship of individuals to their real conditions of
existence.” In this sense, human rights are ideology at its strongest but one
very different from that of Michael Ignatieff.22

Finally, the symbolic and imaginary operation of rights
finds its limit in the real. We hover around the vortex of the real: the lack
at the core of subjectivity both causes our projects to fail and creates the
drive to continue the effort. When we make a demand, we not only ask the other
to fulfill a need but also to offer us unreserved love. An infant, who asks for
his mother's breast, needs food but also asks for his mother's attention and
love. Desire is always the desire of the other and signifies precisely the
excess of demand over need. Each time my need for an object enters language and
addresses the other, it is the request for recognition and love. But this
demand for wholeness and unqualified recognition cannot be met by the big Other
(language, law, the state) or the other person. The big Other is the cause and
symbol of lack. The other person cannot offer what the subject lacks because he
is also lacking. In our appeal to the other, we confront lack, a lack that can
neither be filled nor fully symbolized.

Rights allow us to express our needs in language by
formulating them as a demand. A human rights claim involves two demands
addressed to the other: a specific request in relation to one aspect of the
claimant's personality or status (such as to be left alone, not to suffer in
one's bodily integrity, and to be treated equally), but, in addition, a much
wider demand to have one's whole identity recognized in its specific
characteristics. When a person of color claims, for example, that the rejection
of a job application amounted to a denial of her human right to
non-discrimination, she makes two related but relatively independent claims.
The rejection is both to an unfair denial of the applicant's need for a job but
also it denigrates her wider identity. Every right therefore links a need of a
part of the body or personality with what exceeds need, the desire that the
claimant be recognized and loved as a whole and complete person.

The subject of rights tries to find the missing object that
will fill lack and turn him into a complete integral being in the desire of the
other. But this object does not exist and cannot be possessed. Rights offer the
hope that subject and society can become whole: ‘if only my attributes and
characteristics were given legal recognition, I would be happy’; ‘if only the
demands of human dignity and equality were fully enforced, society would be
just.’ But desire cannot be fulfilled. Rights become a fantastic supplement
that arouses but never satiates the subject's desire. Rights always agitate for
more rights. They lead to new areas of claim and entitlement that again and
again prove insufficient.

Today human rights have become the mark of civility. But
their success is limited. No right can earn me the full recognition and love of
the other. No bill of rights can complete the struggle for a just society.
Indeed the more rights we introduce, the greater the pressure is to legislate
for more, to enforce them better, to turn the person into an infinite collector
of rights, and to turn humanity into an endlessly proliferating mosaic of laws.
The law keeps colonizing life and the social world, while the endless spiral of
more rights, acquisitions, and possessions fuels the subject's imagination and
dominates the symbolic world. Rights become the reward for psychological lack
and political impotence. Fully positivized rights and legalized desire extinguish
the self-creating potential of human rights. They become the symptom of
all-devouring desire – a sign of the Sovereign or the individual – and at the
same time its partial cure. In a strange and paradoxical twist, the more rights
we have the more insecure we feel.

But there is one right that is closely linked with the real
of radical desire: the right to resistance and revolt. This right is close to
the death drive, to the repressed call to transcend the distributions of the
symbolic order and the genteel pleasures of the imaginary for something closer
to our destructive and creative inner kernel. Taking risks and not giving up on
your desire is the ethical call of psychoanalysis. Resistance and revolution is
their social equivalent. In the same way that the impossible and disavowed real
organizes the psyche, the right to resistance forms the void at the heart of
the system of law, which protects it from sclerosis and ossification.23

We can conclude that rights are about recognition (symbolic)
and distribution (imaginary); except that there is a right to
resistance/revolt.

Thesis 7

For a cosmopolitanism to come (or the idea of communism).

Against imperial arrogance and cosmopolitan naivety, we must
insist that global neo-liberal capitalism and human-rights-for-export are part
of the same project. The two must be uncoupled; human rights can contribute
little to the struggle against capitalist exploitation and political
domination. Their promotion by western states and humanitarians turns them into
a palliative: it is useful for a limited protection of individuals but it can
blunt political resistance. Human rights can re-claim their redemptive role in
the hands and imagination of those who return them to the tradition of
resistance and struggle against the advice of the preachers of moralism,
suffering humanity, and humanitarian philanthropy.

Liberal equality as a regulative principle has failed to
close the gap between rich and poor. Equality must become an axiomatic
presupposition: People are free and equal; equality is not the effect but the
premise of action. Whatever denies this simple truth creates a right and duty
of resistance. The equality of legal rights has consistently supported
inequality; axiomatic equality (each counts as one in all relevant groups) is
the impossible boundary of rights culture. It means that healthcare is due to
everyone who needs it, irrespective of means; that rights to residence and work
belong to all who find themselves in a part of the world irrespective of nationality;
that political activities can be freely engaged by all irrespective of
citizenship and against the explicit prohibitions of human rights law.

The combination of the right to resistance and axiomatic
equality projects a humanity opposed both to universal individualism and
communitarian closure. In the age of globalization, of mondialization we suffer
from a poverty of world. Each one is a cosmos but we no longer have a world,
only a series of disconnected situations. Everyone a world: a knot of past events
and stories, people and encounters, desires and dreams. This is also the point
of ekstasis, of opening up and moving away, immortals in our mortality,
symbolically finite but imaginatively infinite. The cosmopolitan capitalists
promise to make us citizens of the world under a global sovereign and a
well-defined and terminal humanity. This is the universalization of the lack of
world, the imperialism and empiricism to which every cosmopolitanism falls.

But we should not give up the universalizing impetus of the
imaginary, the cosmos that uproots every polis, disturbs every filiation,
contests all sovereignty and hegemony. Resistance and radical equality map out
an imaginary domain of rights which is uncannily close to utopia. According to
Ernst Bloch, the present foreshadows a future not yet and, one should add, not
ever possible. The future projection of an order in which man is no longer a
“degraded, enslaved, abandoned or, despised being” links the best traditions of
the past with a powerful “reminiscence of the future.”24 It disturbs the linear
concept of time and, like psychoanalysis, it imagines the present in the image
of a prefigured beautiful future, which however will never come to be. In this
sense, the imaginary domain is necessarily utopian, non-existing. And yet, this
non-place or nothingness grounds our sense of identity, in the same way that
utopia helps create a sense of social identity. We have re-discovered in
Tunisia and Tahrir Square, in Madrid's Puerta del Sol and Athens’ Syntagma Square
what goes beyond and against liberal cosmopolitanism, the principle of its
excess. This is the promise of the cosmopolitanism to come – or the idea of
communism.25

The cosmopolitanism to come is neither the terrain of
nations nor an alliance of classes, although it draws from the treasure of
solidarity. Dissatisfaction with the nation, state, and the inter-national
comes from a bond between singularities, which cannot be turned into essential
humanity, nation, or state. The cosmos to come is the world of each unique one,
of whoever or anyone; the polis, the infinite encounters of singularities. What
binds me to a Palestinian, a sans papiers migrant, or an unemployed youth is
not membership of humanity, nation, state, or community but a bond that cannot be
contained in the dominant interpretations of humanity and cosmos or of polis
and state.

Law, the principle of the polis, prescribes what constitutes
a reasonable order by accepting and validating some parts of collective life,
while banning, excluding others, making them invisible. Law and rights link
language with things or beings; they nominate what exists and condemn the rest
to invisibility and marginality. As the formal and dominant decision about
existence, law carries huge ontological power. Radical desire, on the other
hand is the longing for what has been banned and declared impossible by the
law; what confronts past catastrophes and incorporates the promise of the
future.

The axiom of equality and the right to resistance prepare
militant subjects in the ongoing struggle between justice and injustice. This
being together of singularities in resistance is constructed here and now with
friends and strangers in acts of hospitality, in cities of resistance, Cairo,
Madrid, Athens.

NOTES

1- Costas Douzinas, The End of Human Rights (Oxford: Hart,
2000); Costas Douzinas and Adam Gearey, Critical Jurisprudence (Oxford: Hart,
2005); Costas Douzinas, Human Rights and Empire (Abingdon: Routledge, 2007).
This essay summarizes and moves forward this alternative approach to rights.
The final part of this work entitled The Radical Philosophy of Right will be
published by Routledge in 2014.

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